Preemption

Preemption is a corporate PR/lobbying strategy originally developed and implemented by the tobacco industry to thwart legislation, regulations or public organizing activity that they perceive would be detrimental to business before such action starts.

Origin and first use
The industry's preemptive strategy was first noticed around 1991, when a confidential memo written by Michael J. Kerrigan of the Smokeless Tobacco Council revealed a new strategy the tobacco industry was using to head off smoking bans across the country: Instead of flatly opposing all anti-smoking laws, the industry had started pushing states to adopt weak or loosely-written smoking laws that prevented towns, cities and counties from approving tougher, local anti-smoking ordinances of their own. The approach had worked in several states by that time, including Iowa, where a new state law had prevented localities from passing any anti-smoking rules at all. Kerrigan's memo states that, in order to pass, the preemptive legislation must give the appearance of being a comprehensive tobacco control regulatory scheme.

Philip Morris' use of preemption strategy
Philip Morris employed a preemption strategy widely in 1994 when it introduced its "Accommodation Program," in which the company worked to compel the establishment of separate smoking and non-smoking sections in public venues like restaurants, hotels and bowling centers. PM rolled out its Accommodation Program as a response to a proposed smoking ban in Pennsylvania. The idea was to convince business owners to establish smoking sections so the public would feel as though something had been done about the problem of secondhand smoke; this in turn would convince legislators that legislation to regulate tobacco smoke would be unnecessary.

Philip Morris, however, took the strategy further, working to enact legislation in all 50 states to preempt local smoking restrictions.

In a 1994 draft speech to the Philip Morris USA Trade Council, Ellen Merlo, Senior Vice President of Corporate Affairs at PM, describes a major PM strategy to thwart public health efforts to restrict indoor smoking: shift the argument away from the health effects of secondhand smoke exposure and onto "accommodation" and indoor air quality in general. She describes PM's strategy to enact what the company calls "accommodation legislation," which will "serve to pre-empt local smoking restrictions which tend to be more severe."

Introduction and passage of weak legislation
As indicated above, a common preemptive tactic is the introduction and passage of weak legislation that has little if any effect on corporate operations, sales, etc.

Lawsuits
Corporate preemptive efforts can take several different forms, including lawsuits. In the case of efforts by localities to pass bans on plastic grocery bags, groups funded by the plastics industry have emerged and sued to repeal such laws.

"Public education" programs
A memo from Wendy Leavell of Philip Morris' (PM) public relations firm of Karsh and Hagan in Colorado discusses strategies of how to do a test "rollout" of two Philip Morris programs aimed at heading off legislation: the Accommodation Program and a "youth smoking prevention program." The key line showing that PM' youth anti-smoking program is a strategy to preempt further legislation comes in the fifth paragraph of the memo, where Leavell says:

"While we accept that both programs [Accommodation and the youth program] have significant value as major tactics in a strategy to achieve a kind of pre-emption, we believe the clutter of messages ... in one community will make measuring success of either program difficult."

Sourcewatch resources

 * Accommodation Program

External resources
search_term=preemption confidential